Comment by jpatokal | Hacker News Reader

Comment by jpatokal | Hacker News Reader

I'm not saying I necessarily agree with the prosecution, their tactics or the charges, but this article is sensationalist to the point that you could change the headline to "emptying your trash could land you in prison".

> prosecutors argued that he made a conscious choice to destroy materials he knew could be used in a future investigation.

See, that's the point here. If he had happened to have (say) VHS tapes or even handwritten notes of those sessions, and he had thrown them out after the bombing, he could have been slapped with the same charges. The primary difference here is that emptying your browser history leaves a telltale sign, while chucking out some physical object does not.

Also, this article is conveniently omitting the fact that he also pled guilty to three counts of essentially lying to the FBI: http://www.thedailybeast.com/articles/2015/03/26/the-fbi-is-...

Remember kids, don't talk to police. Ever. https://www.youtube.com/watch?v=6wXkI4t7nuc

The timeline listed in the source he provides clearly states that he made an effort to "delete files [...] reformat his computer" after the events, indicating knowledge he could be implicated as an accomplice.

That said, I think using the "mens rea" argument associated with implicit guilt is how dangerous precedents are born.

I'm specifically concerned with this excerpt from from Sarbanes-Oxley act which is being misappropriated by prosecutors:

>Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

Deleting videos and attempting to reformat a computer after the Boston marathon are done knowingly. Clearing one's cache/browser history is in many situations an automatic action, and it's troubling to find it lumped in with pre-meditated action.

I see justification for 3 counts of obstruction, not 4. The 4th looks like an attempt to set the modus operandi of the courts in dealing with our web/online history, and I don't think anything which draws attention to that is necessarily a bad thing...

> Clearing one's cache/browser history is in many situations an automatic action

Article says "he doctored his browser history" which sounds less automatic.

> Article says "he doctored his browser history" which sounds less automatic.

Or the writer could have been trying to introduce verbal variety and as a consequence ineptly misrepresented what happened. The link[1] immediately after "doctored his browser history" only mentions "deleting files/data" and "reformatting":

[1] https://www.bostonglobe.com/metro/2014/05/30/timeline-allege...

Seems like there's a lot of worry about the precedence this case sets, but not a lot of detail about what actually happened.

I'm sorry, I should have provided the source in my original post. Pages of interest are 9 and 10:

SOURCE: http://www.justice.gov/sites/default/files/usao-ma/legacy/20...

It states (item 40), paraphrased, that he deleted his internet cache and also browsing history selectively, which was used to reason that he was attempting to hide his philosophical similarities with the brothers.

I take issue with item 43:

----

By deleting his Internet cache and other files, MATANOV obstructed the FBI’s determination of his Internet activity during the night of April 18 and the day of April 19, 2013, and the extent to which he shared the suspected bombers’ philosophical justification for violence, among other topics of interest. MATANOV’s deletions have thus obstructed the FBI’s investigation of the bombings and the suspected bombers, and have caused the FBI to expend considerable additional resources during its investigation of the bombings and the suspected bombers.

----

This man is clearly guilty, and the other evidence is damning. That said I cannot ever see validity in the argument that clearing history of access to publicly-accessible records online definitively indicates obstruction, or "malicious intent." Localized browsing history should be considered more ephemeral than user-stored files, because otherwise where is the line drawn? Could you be charged in 2018 for not leaving your computer in a cold enough climate for encryption keys to be recoverable from RAM? Possibly, because without those you'd cause the FBI to "expend considerable additional resources during its investigation."

I say this because the application of that reasoning doesn't discriminate between individuals actually trying to defraud (e.g., this gentleman) and those who are privacy conscious. It has chilling and unintended consequences, and those shouldn't be ignored when the case can absolutely be made without this assertion.

I say this because the application of that reasoning doesn't discriminate between individuals actually trying to defraud (e.g., this gentleman) and those who are privacy conscious.

But it does. If you're legitimately purging your browser history because you're privacy conscious, you're almost certainly going to have it performed in some sort of automated fashion. Maybe you have the browser purge those things on shutdown. Or you have an extension that nukes things older than 24h. Or, worst case, hopefully you have some way of demonstrating that you do this on the regular, by hand (but that still might not cover you, truth be told).

Doing it one-off is a completely different matter, legally speaking.

See my reply elsewhere in this subthread for an analogous situation involving company financial records. [1] Nutshell: if you don't want to be prosecuted for obstruction of justice or destroying evidence, you have a standing, documented, and meticulously followed document retention policy, under which you're shredding things on the regular.

There is unambiguous, and well-settled precedent (and probably also statute, but I'm too lazy to look it up) to this effect. There is no new legal ground being broken here whatsoever.

[1] https://news.ycombinator.com/item?id=10032792

If you're intelligent and privacy conscious, yes. I also think a statistically-relevant alternate scenario exists where a person is deleting things selectively out of fear of (real or imaginary) ideological persecution. I don't see this legal interpretation by federal prosecutors as discriminating between actively impeding an investigation (obstruction) and controlling what information we retain on the devices we own--especially when that information can be recovered from other places, like browsing history.

They were looking to create a case for philosophical sympathies and they found evidence of that in both his statements and direct actions. That would be enough to charge him, and yet they've chosen to specifically juxtapose his internet browsing history (and deletion thereof) with "[causing] the FBI to expend considerable additional resources during its investigation." As you said they either recovered the files directly, or else subpoenaed the ISP, and neither could be said to take "considerable effort."

They're saying that because he viewed certain videos and pictures (publicly available) online, he must be a sympathizer. I'm saying, yes he's a sympathizer (and deserves prosecution) but his browsing history online should not be a legally valid justification. Unless you want to sweep up journalists & whistleblowers in the process... Even copyright defendants (thanks to the TPP), if the hypothetical owner of defecatingdwarves.us were to demand criminal charges be brought against a cyberlocker illegally streaming their videos, and you just happened to delete the history entry from your recent visit which the plaintiff decided to treat as "evidence."

This case isn't creating a precedent, but it's the first time I have seen federal prosecutors use this rationale and it's concerning. I personally don't think deleting your browsing history alone--even selectively--warrants a potential 20yr federal sentence.

Sharing a mindset is criminal too now? Thoughtcrime, really?

Also, nobody under investigation has to implicate itself?

If you play postal, and one of the guys you have smoke breaks with runs amok - deleting that game from a "new philosophical viewpoint" makes you guilty?

The problem is, that law tryies to mindread here in the end. Which they can not. There is a diffrent between rhetoric and action.

Many laws try to read intent. That's what mens rea is.

https://en.wikipedia.org/wiki/Mens_rea

Even if he deleted specific entries from his browser history, if they knew that, then they must've had their own records of it. So they already had the evidence. So it wouldn't matter that he deleted his copy, it was unnecessary. That wouldn't obstruct or destroy anything.

He didn't know they had copies (assuming they even did; I think it's more likely they were able to reconstruct the deleted data, given that deleting a file is just removing its dirent, and formatting a drive is just recreating the filesystem metadata). As far as he knew, the entries in his browser history were the only records of those searches, or whatever.

That makes the action (assuming it was done with intent to destroy the evidence, and not merely an automatic, "quitting the browser purges its history" type thing) illegal.

Consider the analogous situation of two companies, both engaged in illegal activities:

Company A has a standing, published document retention policy that says that all financial records must be destroyed after 30 days.

Company B has someone sneaking in at night to shred the records of their profits from selling meth to schoolchildren.

The Feds have copies of both of their records, because they have someone on the inside copying them and turning them over.

One company's relevant employees are going to face one set of charges. The other's are going to face two. Can you guess which is which?

> Clearing one's cache/browser history is in many situations an automatic action, and it's troubling to find it lumped in with pre-meditated action.

Taking out the trash is in many situations an automatic action, but if you do it to hide evidence, it's obstruction of justice and it's a crime.

I don't find it troubling at all just because it's a new technology. When researching something in pre-internet days, I'd often write things down. Book titles, periodical dates and pages, microfilm request forms, key quotes. That my browser does that sort of thing automatically is different, but not all that different.

If anybody doesn't like that, they can turn it off right now with one checkbox. But clearing the cache because you want to destroy evidence is no different than, as in War Games, quickly taking the trash can out to the curb.

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